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State v. Cain

Court of Appeals of New Mexico

June 25, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
PAUL A. CAIN, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Laurie Pollard Blevins, Assistant Attorney General Albuquerque, NM for Appellee

          Paul A. Cain Chaparral, NM Pro Se Appellant


          DUFFY, JUDGE

         {¶1} Defendant was found guilty of two counts of failure to register as a sex offender under New Mexico's Sexual Offender Registration and Notification Act (SORNA), NMSA 1978, Section 29-11A-4) (2005, amended 2013). We hold that the two convictions violated Defendant's right to be free from double jeopardy and remand to the district court to vacate one of Defendant's convictions. We reject the remainder of Defendant's arguments on appeal.


         {¶2} Defendant was convicted of third degree criminal sexual penetration on September 5, 2008. Thereafter, he was required to register as a sex offender pursuant to SORNA, which required that he register every ninety days and also within ten days of changing his address. See Section 29-11A-4 (F), (L)[1]; see also UJI 14-990 NMRA (sex offender registration and notification chart). In 2012, Defendant failed to comply with both requirements. Defendant had last registered on March 7, 2012, and his next ninety-day deadline to re-register was June 7, 2012. Section 29-11A-4(L)(1). In that period, Defendant was evicted and required to move out of his home by June 17, 2012, thus triggering a separate requirement that he register his new address within ten days of his move. Section 29-11 A-4(F) (2005). Defendant missed both deadlines and did not register again until July 11, 2012. Defendant was arrested and elected to proceed, pro se, with a bench trial. The district court convicted Defendant on November 10, 2015, of two counts of failing to register as a sex offender and sentenced him to three years' incarceration.


         {¶3} Defendant, representing himself pro se at trial and on appeal, raises numerous claims of error. This Court, in its notice of assignment to the general calendar, requested that the parties discuss any double jeopardy implications arising from Defendant's convictions. Along with double jeopardy, Defendant raises sixteen additional claims of error. We address the double jeopardy issue and other claims properly raised on appeal, but decline to review the remaining unpreserved and undeveloped claims. In Lukens v. Franco, our Supreme Court stated,

We remind counsel that we are not required to do their research, and that this Court will not review issues raised in appellate briefs that are unsupported by cited authority. When a criminal conviction is being challenged, counsel should properly present this court with the issues, arguments, and proper authority. Mere reference in a conclusory statement will not suffice and is in violation of our rules of appellate procedure.

2019-NMSC-002, ¶ 5, 433 P.3d 288 (quoting State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254)); Newsome v. Farer, 1985-NMSC-096, ¶ 18, 103 N.M. 415, 708 P.2d 327 ("Although pro se pleadings are viewed with tolerance, a pro se litigant, having chosen to represent himself, is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar." (emphasis and citation omitted)).

         I. Double Jeopardy

         {¶4} Defendant was convicted of two counts of violating Section 29-11A-4, and argues on appeal that his convictions violate his right to be free from double jeopardy. "The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment." NMSA 1978, § 30-1-10 (1963). "A double jeopardy claim is a question of law that we review de novo." State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.

         {¶5} "The Fifth Amendment.... functions in part to protect a criminal defendant against multiple punishments for the same offense." State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal quotation marks and citations omitted). "This prohibition relates to two general categories of cases: cases in which a defendant has been charged with multiple violations of a single statute based on a single course of conduct, known as 'unit of prosecution' cases; and cases in which a defendant is charged with violations of multiple statutes for the same conduct, known as 'double-description' cases." State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61. Because Defendant is charged with two violations of the same statute, this is a unit-of-prosecution case. See Swick, 2012-NMSC-018, ¶ 33 (applying unit of i prosecution analysis to two convictions based on different subsections of the same - statute); State v. Bello, 2017-NMCA-049, ¶ 9, 399 P.3d 380 (noting that "double jeopardy claims based on multiple violations of different subsections under one statute" are analyzed "using the unit of prosecution standard analysis").

To determine the Legislature's intent with respect to the unit of prosecution for a criminal offense, we apply a two-step test. First, we review the statutory language for guidance on the unit of prosecution.) The plain language of the statute is the primary indicator of legislative intent. If the statutory language spells out the unit of prosecution, then we follow the language, and the unit-of-prosecution inquiry is complete. If the language is not clear, then we move to the second step, in which we determine whether a defendant's acts are separated by sufficient indicia of distinctness to justify multiple punishments under the same statute. If the acts are not sufficiently distinct, then the rule of lenity mandates an interpretation that the legislature did not intend multiple punishments, and a defendant cannot be punished for multiple crimes.

State v. Ramirez, 2018-NMSC-003, ¶ 47, 409 P.3d 902 (internal quotation marks and citations omitted). Accordingly, in discerning the Legislature's intent, we first look to the statutory language for guidance on the unit of prosecution.

         {¶6} The Legislature set forth the unit of prosecution within SORNA by stating that "[t]he willful failure to comply with any registration or verification requirement I set forth in this section shall be deemed part of a continuing transaction oroccurrence."" Section 29-11A-4(P) (emphasis added).[2] The Legislature's use of "any" indicates that it contemplated that more than one violation may occur within a given period of non-compliance before the offender next registers, and expressly states that those violations are treated as part of a single, ongoing transaction or occurrence. Cf. Ramirez,2018-NMSC-003, ΒΆ 53 ("Significantly, our Legislature chose not to employ the phrase 'any child' or the word 'children' in place of a child. Had it done so, Section 30-6-1(D)(1) would have expressly contemplated that more than one child may be affected by a single course of abuse by endangerment[.]"). Thus, when a sex offender fails to register after changing his address in violation of Section 29-11A-4(F) and also fails to register within the ...

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